The soft underbelly: liberalism, terrorism and human rights in Northern Ireland

The soft underbelly: liberalism, terrorism and human rights in Northern Ireland

Michael GoveMichael Gove is Home Editor of The Times. This article is an edited extract from his monograph The Price of Peace: An analysis of British policy in Northern Ireland, Centre for Policy Studies, London, 2000). Copies are available from CPS, 57 Tufton Street, London SW1P 3QL, UK. Price: £7.50.

Keywords Terrorism, Human rights

There is a striking coincidence of approach between the Patten Report on the Royal Ulster Constabulary and the Macpherson Report's recommendations for the Metropolitan Police Force[1]. Both argue that the efficacy of a police force depends on it hitting targets for ethnic composition as much as targets for crime clear-up.

There is everything to be said for making recruitment to any police force as broad, open and meritocratic as possible. But both Patten and Macpherson, by recommending quotas, abjure meritocracy in favour of affirmative action. And, as US experience shows, affirmative action causes resentment among those who lose out, insecurity among those who benefit and uncertainty among those charged with managing it. It also offends against the liberal conception of justice, which holds that fairness depends on due process, not pre-ordained outcomes.

But even before Patten, affirmative action had become a feature of life in Northern Ireland. Ulster is pioneering a series of policies destined to roll out across the UK. These are policies which have been conceived as a consequence of republican pressure on the British State. And like affirmative action they envisage a growing role for bureaucracies at the expense of individuals and regulation in place of freedom.

The equality agenda

The sections on Equality and Human Rights in the Agreement envisage, in the words of Beatrix Campbell in the Guardian of 24 February 2000:

…a new modus operandi for joined-up government, more defined and determined than anywhere else in these islands, inscribing equality in the duties of public authorities – including the police.

Ms Campbell is not engaging in wishful thinking. Clause 3 of the Section of the Agreement which deals with Rights, Safeguards and Equality of Opportunity states:

The British Government intends, as a particular priority, to create a statutory obligation on public authorities in Northern Ireland to carry out all their functions with due regard to the need to promote equality of opportunity in relation to religion and political opinion; gender; race; disability; age;marital status; dependants; and sexual orientation. Public bodies would be required to draw up statutory schemes showing how they would implement this obligation…

Equality of opportunity is an unarguable good. But the intention of the framers of this Clause goes far beyond creating a purer meritocracy. The requirement that public bodies draw up statutory schemes "showing how they would implement this obligation" points in one particular direction. It should be considered in tandem with the British Government's pledge in Clause 2(iii) of the Section of the Agreement on Economic Social and Cultural issues to:

… make rapid progress with measures on employment equality…,covering the extension and strengthening of anti-discrimination legislation.

The extension of anti-discrimination legislation and the drawing up of statutory schemes are intended, together, to force public and private bodies to prove they do not discriminate, by conforming with outcome-based, quota-driven employment targets. Companies and public bodies which cannot demonstrate that they did not discriminate in a particular case, and have a nominal imbalance in recruitment at any point, face legal sanction.

Under the terms of the Agreement disappointed employees or job-seekers could use their age or sexual orientation as a pretext for claiming discrimination,placing a potentially huge cost on the employer, who has to prove his own innocence and have his openness to equality judged on the make-up of his workforce at any given point. It is a profoundly illiberal intrusion into the right of individuals to form their own judgements about employee suitability. And it makes windows of men's souls in which sensitivity to difference is elevated to the status of an ideological imperative.

The experience of anti-discrimination legislation in employment matters has already exacerbated social division and placed new burdens on business and taxpayer-funded public bodies. The provisions of the Agreement envisage a broadening and strengthening of the trend. It has already been leapt on by the most radical elements of British opinion as a model for advance.

As Lee Jasper, the racism adviser to Ken Livingstone, who claimed he would have the Met "tearing their hair out," was quoted as saying in The Guardian of 24 February 2000:

Our equality strategies have been enriched by our contact with Northern Ireland. The equality section of the agreement is beautiful. This offers instruments of policy implementation and consultation on a principled,ethical basis.

Mr Jasper's principles include the embodiment in law of "indirect discrimination", by which the existence of prejudice can be proved, and legal remedies deployed to combat it, on the basis of differential employment outcomes. Indirect discrimination, or institutional racism, is a concept developed by the black radical Stokely Carmichael after the US had introduced full civil rights for all its citizens. It was used to explain the violence of inner city rioters whose protests came after their full enfranchisement. Their actions were excused as anger at the failure of every institution of the state to exactly reflect the ethnic composition of the nation.

But, as the Jewish American author David Horowitz notes, the requirement that the state intervene to ensure equality of employment outcomes in every area applies only when specified minorities are perceived to be excluded. There is no agitation for legislative action, Horowitz points out, to "correct" the preponderance of visible ethnic minority athletes in the US Olympic team. And so, as Horowitz argues, those who wish to extend state power and curtail individual liberty cultivate grievance, and excuse violence.

Thus, in Northern Ireland, violence has been excused as a consequence of perceived discrimination, even though full civil equality has already been guaranteed all citizens. And now the gains made by radicals in Northern Ireland are being implemented in the rest of the UK. Ms Campbell notes in her Guardianarticle of 24 February that:

Provisions adapted from Northern Ireland emerged in amendments (to the race relations bill) filed by the Lords and their potential was finally grasped by the Home Secretary. Mr Straw reversed his earlier refusal to include indirect discrimination and agreed to incorporate public bodies, including the police.

A definition of "discrimination" which is anti-liberal and outcome-based has become the model across the UK, as a consequence of pressure from, as Ms Campbell notes "the Progressive Unionist Party and Sinn Fein". So the Belfast Agreement has not just legitimised terror. It has allowed illiberal terrorists to write the illiberal laws which will govern our police.

The human rights agenda

The equality agenda in Northern Ireland cannot be disentangled from the new Human Rights culture to be developed in the Province. On one level, the development of Human Rights legislation in Northern Ireland is part of the broader project of enmeshing Ulster into the Irish Republic. But, as with the equality agenda, there will be ramifications for the rest of the UK.

The Agreement created a specific new Northern Ireland Human Rights Commission(NIHRC) which will work on an all-Ireland basis. Clause 10 of the section dealing with Rights, makes provision for:

A joint committee of representatives of the two Human Rights Commissions, North and South, as a forum for consideration of Human Rights issues in the island of Ireland. The commission will consider, among other matters, the possibility of establishing a charter, open to signature by all democratic political parties, reflecting and endorsing agreed measures for the protection of the fundamental rights of everyone living in the island of Ireland.

Thus the NIHRC acts as another body to harmonise arrangements across the island of Ireland, helping create new structures and institutions, committees and charters, to incarnate the spirit of Irish unity. But as well as acting as an agency of unity, the NIHRC will have an effect on the rest of the UK while the Union still, just, endures.

The NIHRC is the vanguard of a new human rights culture, charged with broadening the scope and reach of the legal revolution heralded by the incorporation of the European Convention on Human Rights (ECHR) into British law.

The incorporation of the ECHR has already marked a decisive change in the balance of power in Britain. It empowers judges to rule that legislation passed in the previously sovereign UK Parliament should be changed if it is not in conformity with judicial interpretations of Human Rights. As such it marks a profound shift in power away from elected representatives, directly accountable to the people, and into the hands of judges. Matters of legitimate ideological and moral debate on which different parties campaign will no longer be decided by the people in elections, nor by the votes of MPs in Parliament, but by the deliberations of judges in private.

The Human Rights culture is already spreading in our society, uprooting conventions on which our stability has rested, allowing female soldiers to sue for unfair dismissal when pregnant and prisoners to sue for injuries sustained in escape attempts. It supplants common sense and common law, and erodes individual dignity by encouraging citizens to see themselves as supplicants and victims to be pensioned by the state. And the effects of the ECHR, sweeping as they may be, will be exacerbated by the NIHRC.

The NIHRC, according to Clause 4 of the Belfast Agreement Section on Rights,will:

be invited to consult and advise on the scope for defining in Westminster legislation, rights supplementary to those in the European Convention on Human Rights to reflect the particular circumstances of Northern Ireland.

In their draft Strategic Plan, the NIHRC set out an ambitious programme of new rights. It plans new children's rights and wishes to act "as an independent watchdog for children's rights" having special regard for "the additional difficulties which may arise due to the sex, race, disability or sexual orientation of a child or its carers".

The NIHRC also accords a special chapter to the rights of ex-prisoners (a growing minority in Northern Ireland thanks to the Agreement) and laments the fact that they "face discrimination when seeking employment, travel documents, welfare benefits, financial assistance, access to compensation for criminal injuries, the adoption of children or general community acceptance."

The NIHRC also takes up the cause of transsexuals and argues that no-one should "be discriminated against on the basis of… gender reassignment". It backs up this sentiment by pledging to spend public money preventing others forming independent judgements about the suitability of transsexuals for specific posts, stating that:

Where appropriate the Commission may also pursue proceedings in court to try to vindicate the rights of people adversely affected because of their sexuality.

Writing in the April 2000 issue of the Belfast magazine Fortnight, the NIHRC Development Worker Miriam Titterton listed those areas where the Commission was looking at special guarantees. They included, as well as the areas listed above:

Provision for a legally enforceable guarantee of equality of treatment for members of all the main communities of Northern Ireland, education rights,language rights, cultural expression, victim's rights, social and economic rights.

The huge raft of new "rights" envisaged by the NIHRC, if enacted,would apply to every body, state or private, which operated in Northern Ireland. Which would mean, in effect, that bodies from the Department of Social Security and the army to Marks & Spencer would be covered. The operation of all these bodies, across the UK, would thus be affected by the NIHRC.

And, as with the Equality Agenda, radicals elsewhere in the UK are looking to the NIHRC to pioneer developments which will then be adopted formally across the UK. Beatrix Campbell in the Guardian of 24 May quotes Courtney Hay of the Bradford-based Northern Complainants Aid Fund enthusing over Northern Ireland's Rights Culture:

You've got to have vigorous enforcement. And you've got to make sure that when you have a breach of rights, the people have the means and the right to take their case to court and say "I accuse."

What will "vigorous enforcement" of the rights offered by the NIHRC mean? What will giving people "the means and the right to take their case to court" involve?

On the basis of the programme the NIHRC has outlined it would involve a potentially massive outlay of taxpayers' money for a variety of supplicants in disputes which would be revolutionary in scope. Creating a culture of children's rights would allow sons to sue fathers and mothers pursue daughters for slights real or imagined, turn families into litigants' battlegrounds, bring legal conflict into the home and institutionalise domestic disputes.

Creating new rights to eradicate "disablism" would mean that institutions such as the police, fire service or army would no longer be able to discriminate in favour of the able-bodied. Campaigners against sex discrimination have already ensured that the fire service cannot discriminate against women. The price, however, of this equality, has been that those in danger are forced to depend on fire-fighters who lack the physical strength to discharge their duties.

It is a situation which can only get worse.

Creating new rights for ex-prisoners would prevent employers making a proper judgement about the fitness of an individual for any vacancy. The necessary discretion an employer needs to safeguard his employees, investment and plant is forbidden him.

Creating new rights for transsexuals again allows common sense to be supplanted by legal intrusion. Will new rights to marry, adopt and enter any job of their choosing be extended? And if so, at what cost to the dignity, stability and durability of our tested notions of married life?

Of all the new rights listed by Ms Titterton, the idea of "social and economic rights" is particularly dramatic. The creation of social and economic rights would make welfare benefits, access to a job, or even a minimum income legally justiciable entitlements, marking again a significant transfer of power and resources to the State.

How the NIHRC operates in practice remains to be seen, but the values which guide the organisation do not bode well. So far, in its casework and investigation, it has tended to champion those seeking to subvert legitimate authority rather than those who have been the victims of the greatest abusers of human rights in Northern Ireland – the paramilitary terrorist organisations. The NIHRC's creation, existence and growth is not a triumph for those who fought terrorism, it is a clear strategic gain for those who dislike the British way of doing things and wish to fundamentally reconstruct the social order and erode traditional liberties.

Note

• 1.

  The Macpherson Report, published in 1999, was an inquiry into the circumstances surrounding the murder of black teenager Stephen Lawrence in South London six years earlier, and the failure to prosecute anyone successfully for his murder. The Report concluded that "institutional racism" by the Metropolitan Police had contributed to this failure, and that similar entrenched prejudice was widewspread in British institutions.